Republican Reactions

The next day, Justices McLean and Curtis read their dissenting opinions, both
of which ruled in favor of Scott. They immediately released the text of their
decisions for publication in print, but Taney withheld his for revising until
late May; the only record the public had of the majority opinion was a short
Associated Press article. This gave the Republicans a decided advantage over
the Democrats in the "war of words," because the Republicans had the full text
of the two pro-Scott dissents, while the Democrats had to rely on simply a
paragraph not even written by one of the Court's justices.
[18]
The "Republican assault" began as early as
March 7, the day after Taney read the majority opinion, when the New York
Tribune pronounced that "The decision, we need hardly say, is entitled to
just as much moral weight as would be the judgment of a majority of those
congregated in any Washington bar-room." The Chicago Tribune added on
March 12:

We must confess we are shocked at the violence and servility of the Judicial
Revolution caused by the decision of the Supreme Court of the United States.
We scarcely know how to express our detestation of its inhuman dicta or fathom
the wicked consequences which may flow from it . . . . To say or suppose, that
a Free People can respect or will obey a decision so fraught with disastrous
consequences to the People and their Liberties, is to dream of
impossibilities.
[19]

Democratic newspapers were as quick to defend the decision as Republicans were
to assault it. On March 12, the (Washington DC) Daily Union urged the country
to respect the decision and unite under it:

We cherish a most ardent and confident expectation that this decision will meet
a proper reception from the great mass of our intelligent countrymen; that it
will be regarded with soberness and not with passion; and that it will thereby
exert a mighty influence in diffusing sound opinions and restoring harmony and
fraternal concord throughout the country . . . . It would be fortunate, indeed,
if the opinion of that court on this important subject could receive the candid
and respectful acquiescence which it merits.

The Cincinnati Daily Enquirer of March 8 was not as optimistic about how
the antislavery public would receive the decision:

While thus anticipating a general acquiescence in the decision of the Supreme
Court, it would be too much to expect that it will escape attack and censure
from disappointed and embittered partisans, whose political capital and hope of
office will wither before it.
[20]

The withholding of Taney's decision created two major other problems. First,
it created a schism between Taney and Justice Curtis, one of the dissenters.
Curtis had the misfortune of being one of the youngest members of the Court, as
well as a native of Massachusetts, a state Taney detested because it epitomized
Northern hypocrisy over the issue of slavery. Curtis further angered Taney by
requesting to see his majority decision as soon as he released it. Curtis
wanted to see the text of Taney's majority opinion because many parts of his
dissent tied into it. During the spring and the summer of 1857, Curtis and
Taney exchanged angry letters, and by September Curtis found the situation so
uncomfortable that he handed in his resignation from the Court.
[21]
The second problem that the withholding of
Taney's decision produced was that when he released it, he had obviously added
parts that were direct replies to the dissents of McLean and Curtis. Curtis
estimated that Taney had appended "upwards of eighteen pages" since he had read
the decision in court and added that "No one can read them without perceiving
that they are in reply to my opinion."
[22]
Relationships between Northerners and
Southerners were already tense, but the withholding of Taney's opinion served
to further polarize the two sides.

Many northerners felt that parts of Taney's decision, specifically the
invalidation of the Missouri Compromise on constitutional grounds, were
extrajudicial because they were not necessary for arriving at a decision in the
case. They charged that after Taney had shown that Scott, as a Negro, had no
right to bring a case into a federal court, he should have ended his decision,
instead of going on to declare that the Missouri Compromise was
unconstitutional. Taney defended his decision by saying that the Supreme Court
had the right to correct all the errors committed during the Circuit
Court trial, including the constitutionality of the Missouri Compromise and the
question of Negro citizenship:

It has been said, that as this court has decided against the jurisdiction
of the Circuit Court on the plea in abatement [which decided whether or not the
Court would consider the question of Scott's citizenship], it has no right to
examine any question presented by the exception; and that anything it may say
upon that part of the case will be extra-judicial, and mere obiter dicta.

This is a manifest mistake; there can be not doubt as to the jurisdiction
of this court to revise the judgment of the Circuit Court, and to reverse it
for any error apparent on the record, whether it be the error of giving
judgment in a case over which it had no jurisdiction, or any other material
error; and this, too, whether there is a plea in abatement or not.
[23]

This explanation was not satisfactory for many northerners, who became angry
because Taney, by extending his opinion to include issues that did not have
much of a bearing on the case, had unjustly set new precedents. Southerners,
of course, stood firmly by the decision of the Court, refusing to concede that
any part of Taney's decision had been extrajudicial. This disagreement led to
further division between North and South.

The decision placed the anti-slavery Republicans in a very difficult
situation. They had the choice of either agreeing to honor the decision,
implying an acceptance of slavery, or refusing to respect it, which would go
against the Constitution's definition of Supreme Court's decisions as the "law
of the land." Not surprisingly, Republicans found ways to discount the opinion
without disrespecting it outright, usually by reasoning that the declaration of
the unconstitutionality of the Missouri Compromise was not law. One of their
main arguments was that after Taney, speaking for the Court's majority, had
decided that Scott was not a citizen and therefore did not have the right to be
in a federal court, anything else he said was obiter dictum and
therefore not law. Although this conceded the Democrats a small victory in
upholding the non-citizenship of Negroes, this argument threw out the Court's
ruling that the Missouri Compromise was unconstitutional, a major victory for
the Republicans. One writer of the time declared that "the members of the most
ultra school of that [Republican] party . . . admit, that the question of the
citizenship of persons of African descent was the only question
authoritatively decided, in the case of Scott."
[24]
Following a similar line of reasoning,
Republicans also argued that a judicial majority had not decided on the
unconstitutionality of the Missouri Compromise and that therefore it was not
law. George Curtis, one of Scott's attorneys, argued that

. . . it appears that six of the nine judges expressed the opinion that the
[Missouri] Compromise Act was unconstitutional. But, in order to determine
whether this concurrence of six in that opinion constitutes a judicial decision
or precedent, it is necessary to see how the majority is formed . . . . If . .
. the judicial function of each judge who held that the Circuit Court was
without jurisdiction [because Scott, as a Negro, was could not be a citizen of
the United States] . . . was discharged as soon as he had announced that
conclusion, and given his voice for a dismissal of the case on that grounds,
then all that he said on the question involved in the merits was extrajudicial,
and the so-called "decision" is no precedent.
[25]

Republicans also attempted to portray the decision as a proslavery conspiracy,
one that included members of the Supreme Court. J.T. Brooke noted in his
analysis of the case that "it has been repeatedly alleged that the Dred Scott
decision was a `got-up case,' contrived by interested politicians to secure a
judicial decision of a political question."
[26]
Many Republicans noticed a brief intercourse
at Buchanan's inauguration between the President and the Chief Justice, who
administered the oath of office, and took that as a sign of a conspiracy
between the executive and judicial branches. Senator William H. Seward, a New
York Republican, noted in a widely distributed speech that Scott "had played
the hand of a dummy in this interesting political game."
[27]
Senator William Pitt Fessenden, a Republican
from Maine, declared that

. . . what I consider this original scheme to have been, was to assert
popular
sovereignty in the first place with a view of rendering the repeal of the
Missouri compromise in some way palatable; then to deny it and avow the
establishment of slavery; then to legalize this by a decision of the Supreme
Court of the United States, and claim that it had become established. I
sincerely believe that decision of the Supreme Court of the United States was a
part of the programme.
[28]

Some more radical Republicans simply invalidated the entire decision. One
writer went so far as to say after the case had been decided that the question
of Negro citizenship "never has been judicially decided by any court of
competent jurisdiction." Statements such as this, however, generally
"surprise[d] even Republicans."
[29]